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Monday, 19 July 2010

Slapping on the Writs

When Gunns sued 20 community activists and organisations, the case brought to public prominence the long and growing trend of "Strategic Litigation Against Public Participation".

The Bannockburn Yellow Gum Action Group was a small community group formed to protect a woodland near Geelong. Barwon Water, a public authority responsible for the water supply and sewerage of the greater Geelong region, wanted to bulldoze the woodland for a sewerage farm.

The chairman of Barwon Water was Frank De Stefano, a prominent former mayor of Geelong.

As part of its campaign, the Bannockburn group produced a bumper sticker “Barwon Water – Frankly Foul”. It was a punning reference to Frank de Stefano, and the authority’s poor record on sewerage outfall.

Mr De Stefano could have laughed off the joke. He could have replied to his critics in the press. He could have published his own bumper sticker. Instead, he sued for defamation.

The writs were delivered on Christmas Eve.

Although the writs named Mr De Stefano as the Plaintiff, the action was funded, at public expense, by Barwon Water.

In the writ, Mr De Stefano pleaded that the joke carried the imputations that:

·Frank De Stefano was a foul person.

·Frank De Stefano was a person smeared with the sewage that the authority of which he was Chairman treated.

·Frank De Stefano was a person who smelt like sewage.

·Frank De Stefano was a person unfit to hold the position of Chairman of Barwon Water.

It was no joke for the defendants. They could defend the case, at great cost, and run the risk of losing their houses if they lost - and losing a great deal of money in costs even if they won. They were opposed by a person who was using public money to run his case, and faced none of the same risks. The defendants were not familiar with defamation legislation, and fatigued from running a demanding campaign and trying to keep up professional and personal commitments.

Defending the case was likely to take a large investment of time, week after week, for years.

The case became enmeshed in complexity and cost. In the end, the group took legal advice, apologised and paid $10,000.

The case was an enormous setback to the community campaign – few wanted to risk involvement if they were likely to be sued.

The trees were felled.

Those who paid out $10,000 for this action will not see their money – or the trees - again. As a result of the writ – which never came to court – the fate of the Bannockburn woodland was decided without the community being able to make a full contribution to the issues.

And it was no comfort to them that Frank De Stefano was later sentenced to many years in jail for defrauding the clients of his accountancy firm.

Cases like this are a growing phenomenon throughout Australia. The uniform defamation laws, which came into operation in 2006, makes it much harder for corporations to sue for defamation, but there are many other causes of action that corporations use - including, ironically, the Trade Practices Act.

When a developer sues a community group for defamation, the developer can claim the expense as a tax deduction – the community group has no such advantage. And the developer runs the case with a prospect of an award of damages at the end. The community group has no such prospect.

The community is not some vague ether in the air – it is the communication between its members. When we stifle public discourse, we stifle community.

Words matter. They can hurt and harm, as well as bring wisdom and healing. The same words that inspire one hearer will outrage another. To silence speech is to stifle the good with the bad.

Australia has no comprehensive protection of community members when speaking about matters of public interest, or about the performance of holders of public office. Commentary on these things ought to be the function of citizens.

In several north American jurisdictions, SLAPP suits – an acronym for Strategic Litigation Against Public Participation – have grown to the point where legislatures have enacted laws to protect public participation. These laws enable courts to punish plaintiffs who bring actions to silence members of the community, by making those plaintiffs pay damages themselves.

Of course, one of the things which makes this more practical in other countries is that they recognise free speech as a human right - something that Australia, alone of all western nations, has not done. The present government missed the opportunity to do this, despite the recommendations of the Brennnan committee.

With the growing phenomenon in Australia of SLAPP suits designed to have a chill effect on public involvement, it is high time similar laws were enacted here.